Tom Cotton’s Over-Simplification Problem
By Daniel Landsman
Last week, Sen. Tom Cotton published an op-ed in the National Review entitled “Our Under-Incarceration Problem”. Sen. Cotton actually thinks that a country with 1.8 million people incarcerated in prisons and jails is under performing. This is not the first time Sen. Cotton has deployed this clickbaity soundbite — he made the same proclamation during a 2016 speech hosted by the Hudson Institute.
A lot has changed between 2016 and 2021, but one thing has remained constant — Cotton’s under-incarceration argument has as much intellectual rigidity as, well, cotton. His most recent entry in the “America has an underincarceration problem” debate reveals that Cotton has an elementary understanding of public safety. In his mind, bad guys plus prison equals safety. The reality of course is not that simple.
America, Cotton argues, must have an underincarceration problem because police don’t solve every crime, and those who do end up in prison “don’t serve their full sentence” (a point that is more rhetorical gymnastics than actual fact, considering parole is a common component of sentences in most U.S. states).
This argument relies on two unspoken but deeply flawed assertions: every person who commits a felony belongs in a prison, and when it comes to prison, more time served is always better than less.
Surprising no one (least of all me), Sen. Cotton has not consulted the data. According to the Department of Justice, the severity of a sentence does not deter criminal behavior but rather the certainty of being caught and held accountable quickly. He also wrongly concludes that everyone in prison for drug charges is a dangerous, violent trafficker.
As a graduate of Harvard Law School — something he’s quick to point out — Sen. Cotton should be well aware of conspiracy charges and the ability of these charges to wrap minor players into charges that would make El Chapo blush. Take, for example, Cindy Shank, who lived with a boyfriend engaged in drug dealing and ended up with a 15-year mandatory minimum sentence for the actions of her boyfriend and not herself. Or Mandy Martinson, who received a 15-year mandatory minimum sentence despite never having once sold drugs.
The truth is this: the system is unduly harsh for people who engaged in drug dealing.
Chris Young, as sentencing judge Kevin Sharp put it, was “barely on the totem pole” but because of two prior drug offenses Judge Sharp was required to sentence him to life without parole in federal prison. The sentence, and others like it, were so unjust in the eyes of Judge Sharp that he retired from the federal bench in frustration. In January 2021, Chris Young was granted clemency from one of Sen. Cotton’s favorite people, then-President Donald Trump.
FAMM has seen countless stories like these that definitively refute the clear delineation between drug user and violent, dangerous drug trafficker that Sen. Cotton thinks exists. The mandatory sentencing laws that put Cindy, Mandy, Chris, and folks like Calvin Bryant and Cynthia Powell at the state level in prison for well over a decade have led us to our current moment where we face 1.8 million people incarcerated in prisons and jails.
Sen. Cotton concludes his article by stating, “the simple truth is this: that the ‘right’ number of people in prison should be determined by the number of people who commit crimes.” Well, the simple truth from over 30 years of excessively punitive sentencing laws is that Cotton is wrong. The senator assumes there is always a positive correlation between incarceration rates and public safety, but a 2015 study from the Brennan Center for Justice found that large states such as New York, California, and Texas all decreased their prison populations and crime rates simultaneously. Another study from the Pew Charitable Trust found no relationship between drug sentencing and drug use, drug arrests, or drug overdoses. And yet another study from the RAND Corporation found that mandatory minimum drug sentences were the least cost-effective way to reduce drug related crime.
If you want to continue waste money, destroy families, and destroy communities, all while having no impact on public safety — stick with Sen. Cotton. If you want to reunite families, make smart choices with limited tax dollars, and all while improving public safety — join FAMM.
Daniel Landsman is FAMM’s Deputy Director of State Policy.
